What is so ‘International’ about it? – Cambridge International Law Journal

A Truth-Discovering Report by the UN Workplace of the Excessive Commissioner for Human Rights (OHCHR) (UN Report) urged that round 1,400 folks had been killed in the course of the July 2024 rebellion in Bangladesh, which led to the tip of Sheikh Hasina’s 15-year authoritarian rule and the Bangladesh Awami League’s (BAL) grip on energy following mass pupil protests and a lethal crackdown (right here, right here, right here, right here, right here). Going through widespread public fury, the previous PM fled to India, whereas an Interim Authorities led by Nobel Laureate, Dr Muhammad Yunus, took management. Authorized motion underneath the Worldwide Crimes (Tribunals) Act 1973 (ICTA) has been launched earlier than the Worldwide Crimes Tribunal of Bangladesh (ICT-BD) by the victims’ relations towards Hasina and different senior BAL figures for alleged crimes towards humanity. Although Dhaka has requested for Hasina’s extradition, India is unlikely to oblige, doubtlessly justifying its refusal underneath the carve-out clauses of the bilateral extradition treaty. This submit argues that regardless of current vital reforms, the ICTA nonetheless fails to fulfill worldwide requirements, significantly because of the continued inadequate experience of worldwide judges and the retention of the loss of life penalty–components that stay unchanged from its earlier model and lift critical considerations about compliance with worldwide legislation. For the needs of this submit, the pre-reform model of the ICTA shall be known as the ICTA, whereas the post-reform model shall be recognized because the revised ICTA. The submit will start with a quick overview of the ICTA’s background, adopted by an evaluation of the problematic components of each the sooner and amended variations.

Revival of the ICT-BD and Controversies Surrounding Its Proceedings

The ICTA was initially enacted to prosecute worldwide crimes dedicated throughout Bangladesh’s 1971 Liberation Battle. After returning to energy in 2008, the BAL Authorities established the ICT-BD. Within the early 2010s, the ICT-BD convicted and executed a number of leaders of Jamaat-e-Islami and the Bangladesh Nationalist Get together (BNP), which had been BAL’s predominant political rivals. These trials had been closely criticised by human rights organisations like Human Rights Watch and Amnesty Worldwide for failing to make sure honest trials. The present instances referring to the July–August 2024 occasions mark the second section of proceedings earlier than the ICT-BD.

Preliminary Proceedings: Alignment with Worldwide Requirements?

The preamble to the ICTA clearly states that it’s ‘[a]n Act to supply for the detention, prosecution and punishment of individuals for genocide, crimes towards humanity, warfare crimes and different crimes underneath worldwide legislation’. These are all worldwide crimes. The ICTA has drawn its inspiration from the Constitution of the Worldwide Army Tribunal (the Nuremberg Constitution). For the reason that ICTA addresses worldwide crimes, its provisions and the requirements utilized underneath it must be interpreted consistent with these established underneath the ICC Statute and the Worldwide Covenant on Civil and Political Rights (ICCPR) (each signed and ratified by Bangladesh).

The sooner ICT-BD trials and the Supreme Court docket of Bangladesh’s judgments underneath the ICTA replicate a elementary misunderstanding of public worldwide legislation. Within the landmark Quader Molla case, the Supreme Court docket dismissed the defendant’s argument that, within the absence of a definition of crimes towards humanity in part 3(2)(a) of the ICTA, the Court docket ought to interpret the offence consistent with customary worldwide legislation, significantly by incorporating the requirement of a ‘widespread or systematic assault’ present in Article 7 of the ICC Statute (pp 141–142). This argument was essential, particularly for the reason that Supreme Court docket itself acknowledged that the ICTA didn’t outline crimes towards humanity (p 143). Nonetheless, the Supreme Court docket dominated that customary worldwide legislation didn’t apply (p 260) and maintained that the ICT-BD had jurisdiction to proceed with the trial even when that meant departing from the ideas of public worldwide legislation (pp 131–132). In consequence, the Supreme Court docket imposed loss of life penalty on Quader Molla clearly disregarding customary worldwide authorized requirements. This method occurred in different instances as effectively. In doing so, each the Supreme Court docket and the ICT-BD ignored the important must assess the state of customary worldwide legislation because it stood in 1971 to keep away from violating the prohibition towards retroactive punishment (Report by Geoffrey Robertson QC, p 95). Moreover, their refusal to require proof of a ‘widespread or systematic’ assault underscored their lack of expertise of the evolution and necessities of worldwide legislation (Report by Geoffrey Robertson QC, p 96). The Supreme Court docket additionally essentially erred in failing to recognise that making use of customary worldwide legislation is important for prosecuting worldwide crimes at each home and worldwide ranges.

The ICTA and the trials carried out thereunder had been closely criticised by the UK Supreme Court docket and the Court docket of Enchantment in Mueen-Uddin v State. The observations of the UK Courts remarkably identified why a trial underneath the ICTA can not fulfill the worldwide norms. The principal criticism centred across the vital lack of safety afforded to the defendant underneath the ICTA, as within the phrases of the Supreme Court docket: ‘[Mueen-Uddin being tried in his absence] couldn’t realistically be anticipated to attend the trial or any subsequent enchantment, since he confronted an actual danger of execution’ (para 63). It’s because that the ICTA consists of provisions that led to constitutional modification in Bangladesh, particularly the insertion of Article 47A within the Structure, to bar people accused underneath the ICTA from accessing constitutional cures (para 72). In consequence, the provisions of the Code of Prison Process 1898  and the Proof Act 1872 had been rendered inapplicable (Part 23), primarily eradicating the defendant’s rights to successfully problem the admission of questionable proof to his critical detriment. That is alarming since loss of life penalty is the default punishment underneath the ICTA (Part 20(2)).

Revised ICTA: Safeguarding the Rights of the Accused?

In November 2024, the current Interim Authorities considerably reformed the ICTA to convey the legislation nearer to worldwide requirements. Notably, the definitions of the worldwide crimes throughout the ICTA have been amended in gentle of the ICC Statute with express reference thereto. Whereas the revised ICTA’s adoption of the ICC Statute definitions instead of the outdated ones underneath the ICTA is a optimistic step towards safeguarding the accused’s proper to a good trial, a key query persists as as to whether these amendments might be utilized retrospectively, contemplating that the present proceedings commenced  in October 2024. Moreover, the revised ICTA nonetheless doesn’t include any provision expressly acknowledging the applicability of treaties, ideas and guidelines of worldwide legislation just like the ICC Statute (Article 21(1)(b)), which makes the applying of customary worldwide legislation and different worldwide norms unsure given the binding impact of the sooner judgements rendered by the Supreme Court docket. That is particularly related since, underneath Article 111 of the Structure, the ICT-BD is obligated to comply with the judgments of the Supreme Court docket. Moreover, the revised ICTA doesn’t handle the experience of worldwide judges and retains loss of life penalty–options carried over from the unique model–that essentially weaken honest trial ensures, which shall be examined intimately within the following sections.

(i) Considerations with Experience of ICT-BD Judges

A newly appointed prosecution crew, headed by a lately designated Chief Prosecutor, has taken over the accountability of prosecuting Hasina and the opposite accused, whereas the ICT-BD has undergone restructuring by the appointment of latest judges from the nationwide judiciary. The ICT-BD trials held in the course of the BAL period had been extensively criticised since judges made critical errors because of their restricted experience in worldwide legislation (Report by Geoffrey Robertson QC, pp 95-96). Given the complicated and nuanced nature of crimes towards humanity, such specialised experience is arguably indispensable. Nonetheless, regardless of adjudicating crimes underneath worldwide legislation, the ICTA doesn’t mandate any specialised coaching in worldwide legal legislation for judges or ICT-BD personnel, nor does it supply mechanisms for consulting specialists in worldwide crimes or associated tribunals. This shortcoming persists after the revisions to the ICTA.

(ii) Demise Penalty

Within the UN Report, OHCHR particularly acknowledged that it can not help the Interim Authorities within the judicial course of, as capital punishment is permissible underneath the ICTA (para 255). The OHCHR strongly really useful introducing a moratorium on the applying of loss of life penalty (para 347), which has additionally been urged by the Human Rights Watch. Toby Cadman, particular adviser to the ICT-BD’s Chief Prosecutor, has constantly emphasised the necessity to revisit the supply for capital punishment in gentle of worldwide issues. Nonetheless, Bangladesh’s Regulation Adviser dismissed this suggestion, citing the legality of the loss of life penalty underneath home legislation. This reasoning solely primarily based on its compliance with home legislation is essentially flawed, for the reason that ICTA itself removes a number of key protections out there to the accused underneath core home authorized devices, together with the Code of Prison Process, the Proof Act, and even the Structure. Whereas the revised ICTA incorporates the definitions of worldwide crimes as outlined within the ICC Statute, it notably ignores the Statute’s restrict of 30 years’ imprisonment as the utmost penalty for such crimes (Article 77(1)(a)). This displays a selective method that lacks justification. Subsequently, retaining capital punishment will undermine efforts to align with worldwide human rights requirements.

Conclusion

Though the revised ICTA introduces some welcome reforms, critical shortcomings stay–significantly the inadequate experience of worldwide judges and the continued use of the loss of life penalty. These contentious points, reveal persistent deficiencies that hinder the ICTA’s compliance with worldwide norms. The Interim Authorities should make clear what, qualifies the ICTA or its revised model as actually ‘worldwide’. If the Interim Authorities proceeds with trials underneath the revised ICTA in the identical method because the earlier BAL administration, with out addressing the vital considerations outlined right here, there’s little purpose to imagine that the method will keep away from the identical widespread worldwide criticism and condemnation it beforehand obtained.

Khan Khalid Adnan has accomplished his LLM in Litigation and Dispute Decision from UCL with distinction. He’s a Fellow of the Chartered Institute of Arbitrators (FCIArb), a Barrister in England and Wales, and an Advocate of the Supreme Court docket of Bangladesh. At present, he serves because the Head of the Chamber at Khan Saifur Rahman & Associates, Dhaka, Bangladesh.